Earlier this week, the California Court of Appeal issued a fantastic opinion affirming a Ventura County Superior Court Judge's resolution of a medical futility dispute. Bernstein v. Superior Court of Ventural County (Feb. 2, 2009).This was not a case the involved health care providers as a party to the dispute. Rather, the dispute was between two brothers of a 79-year-old Alzheimer's patient. One brother, Scot, had been the conservator. But Scot had been demanding very aggressive care that offered the father no benefit and significant suffering. Another brother, Ilya, wanted to (and successfully did) replace Scot as conservator.
Quite a few health care providers testified on Ilya's behalf at trial. They all thought that the treatments were "inappropriate" and "futile." But they apparently had been providing (and were prepared to continue to provide) all the treatment that Scot demanded. Why? Because Scot has been threatening lawsuits.
The opinion recites quite a bit of detail from the history of the dispute, and illustrates to some degree: provider legal fear, the role of a bioethics committee, and how to meet the clear and convincing standard of evidence (though that was held not to be the required standard here). There is one odd thing in the opinion. The testimony was unanimous that the patient was in PVS. But there was also substantial evidence that the patient was in pain. I thought the two were (putting fMRI aside) mutually exclusive.
2 comments:
Thanks for the interesting story and link. I read the entire court decision. This story, to me, illustrates why a careful reform of the litigation process as it relates to health care in the US is going to be necessary if our costs are going to be contained in some way. Too many health care decisions are made defensively, due to fear of litigation by threatening family members, rather than by the facts of the patient's condition and the patient's own best interest.
I think there is a lot of question in this case about whether the conservatee was in PVS or not. Everyone seemed to agree that he felt some pain and expressed it through facial expressions. The court actually expressed a very cogent distinction between being able to experience discomfort and being conscious. Whether it is technically a case of PVS or just end-stage dementia, the man clearly is just having his death extended for no clear purpose other than the controlling purposes of the older son. I hope the man is allowed to find some peace soon.
I think those brothers are old enough to get into those troubles I think they should care for taking generic viagra instead of making those struggles.
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